#16095 - Hearsay - BPC Criminal Litigation (formerly BPTC) 2024/2025

Hearsay

Intro

• General exclusionary rule re hearsay evidence.

• Two questions re hearsay, must be kept separate:

  • (1) does the evidence fall within the definition of hearsay evidence?

  • (2) If ‘yes’ it is prima facie inadmissible does it fall within one of the exceptions to the general exclusionary rule?

History & rationale

• Concept of ‘hearsay’: evidence which is given second hand, either: related by a person to whom the absent witness has spoken; or contained in a written statement of the absent witness; or given in the form of a document or record created by him; or otherwise.

• the common law excluded statements other than statements made in oral evidence given in court from being admitted as evidence of the truth of their contents.

  • Main reason: the maker of the out-of-court statement was not available to be XXed so the quality of the evidence could not be tested.

  • EG: in D’s trial for the murder of V, A gives evidence that B told him that D killed V. Only A is in court to be XXed. Cannot test the credibility of B’s statement. B may have had a motive for wanting to get D into trouble. He may be passing on what someone else told him. He may simple be mistaken. What he said may have been misunderstood.

• Common law developed a number of exceptions to the general rule, where it appeared that hearsay evidence could properly be relied on:

• But there was no general ‘interests of justice’ rule whereby hearsay evidence could be admitted until s114(1)(d) CJA 2003. So some pre-2003 case law saw appellate courts taking a broad view of the rules to avoid an unfair outcome.

Hearsay, loss of right to XX & fair trial

• Because hearsay evidence cannot be XXed in court there is an obvious risk of unfairness to D where it is admitted:

  • Right of accused to XX witnesses against him.

  • The risk gets greater as the importance of the hearsay evidence to the prosecution case increases.

  • ECHR Art 6 may be engaged.

• Originally, ECHR, Al-Khawaja said: where a conviction is based solely or decisively on hearsay statements (where accused had no opportunity to XX) the rights of defence are too restricted, incompatible with Art 6. But ECHR now changed mind (below).

• Courts must be vigilant that:

  • (1) that hearsay evidence is recognised and treated as such;

  • (2) that it is received in evidence only where the appropriate safeguards are in place.

• UK Supreme Court (& ECHR), re effects of hearsay on Art 6 fairness of trials:

1. The UK statutory framework for admission of evidence of absent witnesses is sufficient, properly applied, to provide for a fair trial;

2. The court must always be satisfied that (a) there is a sufficient basis for the absence of the witness & (b) that a fair trial will be possible.

3. It will be harder for court to be satisfied that a fair trial will be possible if the evidence of the absent witness is the sole or decisive evidence against the accused

   • [[the more decisive/central the hearsay evidence is, the greater the care required in admitting it]].

4. Where the hearsay evidence is critical to the case the question of whether there can be a fair trial depends on 3 principal factors:

   1. Whether there is a ‘good reason’ to admit the evidence pursuant to CJA 2003;

   2. Whether the evidence can be shown to be reliable;

   3. The extent to which counterbalancing measures have been properly applied

      • eg exclusionary discretion;

      • eg proper directions to the jury in summing up.

• Eg, Horncastle, hearsay evidence was decisive/critical, but was admissible given that:

  • There was other independent evidence support it;

  • D had ample opportunity to challenge the victim’s credibility;

  • Judge gave a full & clear direction about disadvantages.

• CF, Ibrahim, not admissible: could not be shown to be reliable; supporting evidence did not overcome doubts re reliability; and the evidence should have been either excluded under s78 PACE or case stopped under s125.

• The SC and ECHR accept that CJA 2003 contains sufficient safeguards to provide for a fair trial (Art 6): provides sufficient safeguards against risk of wrongful conviction. SC held: CJA 2003 sets out a rigorous statutory scheme whereby the credibility & reliability of hearsay evidence can be tested; includes an overriding safeguard to stop a case based on unreliable evidence (s125). And ECHR now agrees with this.

• Is not necessary to show that decisive evidence is reliable before it can be fairly admitted. It is for jury to assess the reliability of hearsay evidence.

• Judge must ensure that the evidence is capable of being safely held to be reliable, given: (a) its strengths & weaknesses, (b) the tools available to the jury for testing it; and (c) its importance to the case as a whole.

• Where the hearsay evidence is critical/decisive, is unsupported, and likely to be unreliable it should not be admitted.

• Bad character of an absent witness is not necessarily a reason for exclusion, provided that the evidence available to jury is such that they can properly assess the risk of his having lied.

• The fact that vulnerable witnesses are involved does not absolve courts of their responsibility to ensure that there is no unfairness when allowing witness statements to be read.

• Where the prosecution has delayed proceedings and thus a witness is unavailable to testify the court may exclude the witness’s statements on the basis that the prosecution should have proceeded when the witness was available.

• The CJA 2003 applies to trial and other hearings to which the strict rules of evidence apply; and also proceedings under the Crim Procedure (Insanity) Act 1964 s4A, which mirrors the fact-finding process at a criminal trial .

CJA 2003

• General rule = hearsay evidence is inadmissible

• S114 CJA 2003: is admissible IF, but only if, it falls within one of the exceptions in s114(1).

• S114(1), Admissibility of hearsay evidence: In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if:

  1. Statutory exceptions Any provision of this chapter or any other statutory provision makes it admissible,

  2. Any rule of law preserved by s118 (common law exceptions) makes it admissible;

     • Public information

     • Reputation as to character (and reputation or family tradition).

     • Res gestae

     • (common law) Confessions & admissions by agents

     • Common enterprise

     • Expert evidence

  3. Agreement of all parties: All parties to the proceedings agree to it being admissible; or

  4. The court is satisfied that it is in the interests of justice for it to be admissible.

• The rules apply to Pros and Defence

• And it covers not only statements of non-witnesses; but also past statements made by a witness who is called to give oral evidence and could thus be XX-ed about what he has said previously.

• It applies to all statements, not simply to those made in anticipation of the trial itself; and includes docs as well as oral statements.

  • So the rule catches some evidence, such as records of routine business dealings, that is intrinsically reliable, but this does not prevent it being hearsay; the reliability or otherwise of the evidence is relevant only to whether it may be received through an exception to the rule.

WHAT IS ‘HEARSAY’ definition

• In essence: hearsay is a second-hand account of relevant matters.

• CJA shifted the exact demarcation of evidence as hearsay or not in favour of admissibility, due to statutory definition of ‘matter stated’ a statement is non-hearsay if not a matter stated

• From s114(1), it must be: a ‘statement’; which is tendered ‘as evidence of any matter stated’.

• S114(1): a statement not made in oral evidence in the proceedings...as evidence of any matter stated

• S115, Statements and matters stated

1. In this chapter references to a statement or to a matter stated are to be read as follows.

2. A “statement” is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.

3. A “matter stated” is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been:

   1. To cause another person to believe the matter; or

   2. To cause another person to act or a machine to operate on the basis that the matter is as stated.

R v Twist

• R v Twist, CA reformulated the sections as a test that determines whether or not a communication is hearsay. 3-stage test re whether communications are hearsay:

1. Identify what relevant fact (“matter”) is sought to be proved [[CJA is concerned with what it is that a party is seeking to prove; so the purpose of adducing a communication must first be ascertained]];

2. [provided that the matter sought to be proved is relevant]] Ask whether there is a ‘statement’ of that matter in the communication.

   1. IF NO - no hearsay issue arises (whatever other matters may be contained in the communication)

   2. Eg, there is no statement of that matter eg if the communication is not a statement at all but instead a QUESTION, eg a request for drugs.

3. If YES (the communication does state the matter) ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should (a) believe that matter or (b) act upon it as true (or that a machine should operate on that basis).

   1. If YES it is hearsay

   2. If NO it is not.

• So ‘matter stated’ matters intended by statement-maker to be (a) believed or (b) acted upon

  • This reverses Kearley (HL).

  • Eg, if the statement-maker believes that the...